Opinion
Case No. 2:05-cv-241.
June 6, 2006
OPINION AND ORDER
On March 14, 2006, final judgment was entered dismissing the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Doc. Nos. 23, 24. This matter is before the Court on petitioner's April 10, 2006, notice of appeal and request for a certificate of appealability, and his April 21, 2006, amended motion for a certificate of appealability. Doc. Nos. 26, 27, 30. For the reasons that follow, petitioner's request for a certificate of appealability is DENIED.
In his federal habeas corpus petition, petitioner asserts:
1. Petitioner's convictions are in violation of his rights to be free from double jeopardy and have resulted in multiple sentences and convictions for the same offense.
2. Petitioner was denied effective assistance of trial and appellate counsel where counsel failed to protect his rights to be free of double jeopardy.
3. Petitioner was denied effective assistance of trial counsel and due process where counsel failed to request a proper instruction under O.R.C. § 4727.12(B), when the State's witness Detective Schulze misstated the law that required the State to inform petitioner in writing that any purchased property may be stolen.
4. Petitioner was denied his rights to a fair trial and confrontation where the State introduced prejudicial hearsay testimony.
5. Petitioner was denied his right to a fair trial and due process of law where petitioner's convictions are not supported by sufficient evidence as required by law.
6. Petitioner was denied a fair trial and due process of law where there is insufficient evidence to support the "knowledge" element of receiving stolen property and engaging in a pattern of corrupt activity.
7. Petitioner was denied his right to a fair trial and due process of law where the State improperly and prejudicially offers personal opinions on the evidence and pleads for a conviction to protect community values.
8. Petitioner was denied his rights to a fair trial and effective assistance of counsel where trial counsel failed to object to prosecutorial misconduct and inadmissible hearsay.
On March 14, 2006, claims five, six, and eight were dismissed on the merits; claim two was dismissed as procedurally defaulted, and alternatively, as without merit; the remainder of petitioner's claims were dismissed as procedurally defaulted.
When a claim has been denied on the merits, a certificate of appealability may issue only if the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). Slack v. McDaniel, 120 S.Ct. 1595 (2000). To make a substantial showing of the denial of a constitutional right, a petitioner must show
that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were "`adequate to deserve encouragement to proceed further.'" Barefoot, 463 U.S., at 893, and n. 4. . . .Id.
Where the Court dismisses a claim on procedural grounds, a certificate of appealability
should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.Slack v. McDaniel, supra, 120 S.Ct. at 1595. Thus, there are two components to determining whether a certificate of appealability should issue when a claim is dismissed on procedural grounds: "one directed at the underlying constitutional claims and one directed at the district court's procedural holding." The court may first "resolve the issue whose answer is more apparent from the record and arguments." Id.
Upon review of the record, the Court concludes that petitioner has failed to establish either that reasonable jurists could debate whether petitioner's claims should have been resolved in a different manner, or whether the Court was correct in its dismissal of petitioner's claims as procedurally defaulted. Id. Petitioner's request for a certificate of appealability therefore is DENIED. IT IS SO ORDERED.